Opinion of Advocate General Emiliou delivered on 10 November 2022.

• Jurisdiction: European Union
• Celex Number: 62021CC0040
• ECLI: ECLI:EU:C:2022:873
• Date: 10 November 2022
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

EMILIOU

delivered on 10 November 2022(1)

Case C‑40/21

T.A.C.

v

ANI

(Request for a preliminary ruling from the Curtea de Apel Timişoara (Court of Appeal, Timisoara, Romania))

(Request for a preliminary ruling – Decision 2006/928/EC – Cooperation and verification mechanism – Elective public office – Conflict of interest – Penalties – Prohibition to hold any elective public office for a period of time – Charter of Fundamental Rights of the European Union – Article 49(3) – Proportionality of penalties – Direct effect of the principle of proportionality – Powers of national courts – Article 15(1) – Right to engage in work – Concept of ‘work’ – Article 47 – Right to an effective remedy)

I. Introduction

1. Acting unlawfully in a situation of conflict of interest can probably be regarded as one of the capital sins for politicians and civil servants. Indeed it strikes at the heart of their mission to serve the public interest. The concept of ‘conflict of interest’ is, in fact, centuries old and has given rise to various sets of (binding and non-binding) rules at national, international and infranational level. (2)

2. Some guiding principles on this matter can be found, inter alia, in the ‘International Code of Conduct for Public Officials’ adopted by the United Nations (‘UN’) General Assembly in 1996, (3) and in the ‘Model code of conduct for public officials’ adopted by the Council of Europe in 2000. (4) Naturally, several instruments adopted by the European Union include rules aimed, each within its own ambit, at preventing conflicts of interest of EU or national officials. One such instrument is Commission Decision 2006/928/EC of 13 December 2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption. (5)

3. The present case, originating in a request for a preliminary ruling by the Curtea de Apel Timişoara (Court of Appeal, Timisoara, Romania), concerns the interaction between Decision 2006/928, national legislation adopted to implement that decision, and the Charter of Fundamental Rights of the European Union (‘the Charter’). In essence, the referring court asks the Court whether EU law – in particular, Article 15(1), Article 47 and Article 49(3) of the Charter – precludes national legislation pursuant to which a penalty consisting in a prohibition to hold any elective public office for a fixed period of time is imposed automatically on the person found to have acted in a conflict of interest (‘the penalty at issue’).

4. Despite its apparent simplicity, that question raises a number of interesting legal issues regarding the scope of application of those provisions of the Charter and the powers and duties of national courts when national law provides for disproportionate penalties for infringements of national provisions that implement EU law.

II. Legal framework

A. European Union law

5. The first paragraph of Article 1 of Decision 2006/928 provides:

‘Romania shall, by 31 March of each year, and for the first time by 31 March 2007, report to the Commission on the progress made in addressing each of the benchmarks provided for in the Annex.’

6. The annex enumerates those benchmarks. Point 2 thereof reads:

‘Establish, as foreseen, an integrity agency with responsibilities for verifying assets, incompatibilities and potential conflicts of interest, and for issuing mandatory decisions on the basis of which dissuasive sanctions can be taken.’

B. National law

7. Article 25 of Legea nr. 176/2010 privind integritatea în exercitarea funcțiilor și demnităților publice, pentru modificarea și completarea Legii nr. 144/2007 privind înființarea, organizarea și funcționarea Agenției Naționale de Integritate, precum și pentru modificarea și completarea altor acte normative (Law No 176/2010 on integrity in the performance of public duties and the holding of public office and amending Law No 144/2007 on the establishment, organisation and operation of the National Integrity Agency and amending certain other acts; ‘Law No 176/2010’) provides:

‘1. In the case where an individual has issued an administrative act, concluded a legal act, adopted a decision or participated in the adoption of a decision in breach of the legal obligations relating to conflicts of interest or to situations entailing incompatibility, his action shall constitute a disciplinary offence and shall be punished in accordance with the rules which apply to his office, function or relevant activities, in so far as the provisions of the present law provide no derogation therefrom and where the action does not constitute a criminal offence.

2. An individual who has been relieved of his duties or dismissed from office in accordance with paragraph 1, or in respect of whom a conflict of interest has been established or a situation entailing incompatibility, shall no longer be entitled to perform the public duties or hold the public office to which the provisions of this law apply, with the exception of electoral duties, for a period of three years from the date on which he is relieved of his duties or dismissed from the public office in question or from the date on which his mandate automatically terminates. In the case where the individual has performed electoral duties, he shall no longer perform the same duties for a period of three years from the date of termination of his mandate. In the case where the individual no longer performs public duties or holds public office at the time when the situation entailing incompatibility or a conflict of interest is established, the three-year period of prohibition shall commence, in accordance with the law, on the date on which the assessment report becomes final or on the date on which a judicial decision confirming the conflict of interest or the situation entailing incompatibility becomes final and irrevocable.’

8. In that connection, the referring court mentions Decizia nr. 418/2014 (Decision No 418/2014) of the Curtea Constituțională (Constitutional Court, Romania), according to which the expression ‘aceeași funcție’ (‘the same duties’), appearing in Article 25(2) of Law No 176/2010, covers all elective duties, including those of the office of mayor.

III. Facts, national proceedings and the questions referred

9. T.A.C., the applicant in the main proceedings, was, at the material time, mayor of a city in Romania.

10. In an assessment report dated 25 November 2019 (‘the assessment report’), the Agenția Națională de Integritate (National Integrity Agency, Romania; ‘the ANI’) – an administrative authority responsible for the assessment of conflicts of interest – found that the applicant had failed to comply with the rules governing conflicts of interest in administrative affairs. During his term of office as mayor, he had concluded a ‘loan for use’ agreement with an association, of which the applicant’s wife was a founding member and vice-chairperson. Under that agreement that association was granted the right to use, free of charge, certain premises belonging to the city for a period of five years, for the purposes of cultural activities.

11. On 19 December 2019, the applicant brought an action before the Tribunalul București (Regional Court, Bucharest, Romania) seeking the annulment of the assessment report. In support of his application, the applicant argued, inter alia, that EU law precludes national legislation pursuant to which a penalty such as a prohibition to hold any elective public office for a period of three years is imposed automatically on the person found to have acted in a conflict of interest, and cannot be modulated according to the gravity of the breach committed.

12. By judgment of 27 February 2020, the Tribunalul București (Regional Court, Bucharest) declared that it did not have jurisdiction to hear the action and referred the case to the Curtea de Apel Timișoara (Court of Appeal, Timisoara). That court, harbouring doubts as to the correct interpretation of the relevant provisions of EU law, decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is the principle of proportionality of penalties, enshrined in Article 49 of [the Charter], to be interpreted as also applying to facts other than those which are formally defined as criminal offences under national law, but which may be regarded as “criminal charges” within the meaning of Article 6 of the European Convention on Human Rights, (6) in the light of the criteria developed by the case-law of the European Court of Human Rights, (7) in particular the criterion of the severity of the penalty, as in the case in the main proceedings in so far as concerns the appraisal of a conflict of interest which may result in the application of an additional penalty consisting in a prohibition to hold any elective public office for a period of three years?

(2) In the event that the first question is answered in the affirmative, is the principle of proportionality of penalties, enshrined in Article 49 of [the Charter], to be interpreted as precluding a provision of national implementing law pursuant to which, in the case where a person holding an elective public office is found to have acted under a conflict of interest, an additional penalty consisting in a prohibition to hold any elective public office for a period of three years applies automatically, by operation of law, without there being any possibility of imposing a penalty that is proportionate to the breach committed?

(3) Are the right to engage in work, guaranteed by Article 15(1) of [the Charter], and the right to an effective remedy and to a fair trial, guaranteed by Article 47 of the Charter, to be interpreted as precluding a provision of national implementing law pursuant to which, in the case where a person holding an elective public...